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Blogging for gun safety reform and changing the conversation about the role of guns and gun violence in our communities. Common sense gun laws and gun safety reform and gun rights are not mutually exclusive.

In 2005 Congress passed a law opposed by many, including the gun violence prevention organizations around the country. It was difficult for the general public and Congress to really grasp. But when the “guys with the guns make the rules” that is often the case. This law is the Protection of Lawful Commerce in Arms law, aka the Immunity Law ( Gun Industry Immunity). Here is what this law does:

In the years before passage of the act, victims of firearms violence in the United States had successfully sued manufacturers and dealers for negligence on the grounds that they should have foreseen that their products would be diverted to criminal use.[2] The purpose of the act is to prevent firearms manufacturers and dealers from being held liable for negligence when crimes have been committed with their products. However, both manufacturers and dealers can still be held liable for damages resulting from defective products, breach of contract, criminal misconduct, and other actions for which they are directly responsible in much the same manner that any U.S. based manufacturer of consumer products (i.e. automobiles, appliances, power tools, etc.) are held responsible.

While opponents of the measure said it singles out the gun industry for special protection, Mr. LaPierre said the protection is necessary because, unlike auto manufacturers or pharmaceutical companies, American firearms makers “don’t have deep pockets,” and the industry would be at risk simply from the cost of fighting the lawsuits.

But opponents called the bill shameful — “bought and paid for by the N.R.A.,” in the words of Senator Edward M. Kennedy, Democrat of Massachusetts. Representative Chris Van Hollen, Democrat of Maryland, whose constituents include victims of the 2002 sniper shootings in Washington and its suburbs, called the measure “a cruel hoax” on victims of gun violence.

“I went to a lot of memorial services during that period of time,” Mr. Van Hollen said. “I’ve met with family members. To tell them that their cases were frivolous is, I think, to add insult to injury.”

Eight of the sniper victims or their relatives won a $2.5 million legal settlement from the manufacturer of the gun used in the shootings and the dealer in Washington State who sold it. Mr. LaPierre said that suit would have been permitted under the law passed Thursday. But the lawyer who brought it, Dennis Henigan of the Brady Center to Prevent Gun Violence, disagreed.

Mr. Henigan said that while the dealer had violated federal law, the bill would have prevented the suit nonetheless because the violations did not pertain directly to the weapon used in the sniper shootings. He said he intended to challenge the bill on constitutional grounds, arguing that it deprives states of their right to legislate and deprives victims of their right to sue.

As our country is experiencing more, not fewer, gun deaths and injuries and as the mass shootings keep piling up, this Media Matters article wonders why we aren’t paying more attention to this gun lobby law. From the article:

The Protection of Lawful Commerce in Arms Act favors an industry that, at best, turns a blind eye to business practices that place profit over victims. As Forbes admits, the result is that “gun manufacturers have won double-barreled protection from Congress against the type of lawsuits that bedevil the makers of everything from toys to tractor-trailers.” Although legal experts like Andrew Cohen, posting in The Atlantic, are starting to highlight this unnecessary and unprecedented immunity for the gun industry, further attention would better inform current calls to hold gun companies accountable in court. As leaders of Congress state that “every idea should be on the table” in attempting to prevent another tragedy like the Newtown massacre, major news outlets should investigate why the gun industry remains shielded by law from the consequences of its irresponsible business practices in a way that other industries are not.

For example, the same type of gun used in the Newtown shooting was used by the 2002 Washington, D.C., snipers to shoot more than a dozen people. But if it had been in effect at the time, the Protection of Lawful Commerce in Arms Act would have blocked the lawsuit filed by the victims against the gun maker and dealer, and prevented the settlement they received. On this point, the questions of Denise Johnson, the widow of one of the snipers’ victims, are still relevant:

I’m confident that the criminal justice system will work to punish the people who killed my husband. But the civil justice system must also be allowed to work. Those who share responsibility for my husband’s death must also be held accountable.

[…]

I and families of other sniper victims have sued these gun sellers. I hope that by holding them accountable, we can cause others to behave more responsibly, and that future tragedies such as mine will be prevented. I understood when I filed the case that I was not guaranteed victory, but that’s OK. All I wanted was my day in court. But if [the Protection of Lawful Commerce in Arms Act] is enacted, the courthouse door will be slammed in my face.

No other industry enjoys the protections that the gun industry is seeking. Gun sellers and manufacturers shouldn’t be above the law. If any other product injured my husband and irresponsible sellers played a part, I would be able to bring a case in court. But because Conrad was shot with a gun, my lawsuit would not be allowed. Those who sell guns that are sought by criminals need to be more careful than sellers of other products, not less careful.

I call on Congress to protect my rights and the rights of other victims of gun violence. There’s nothing frivolous about how bad gun dealers behave. And there’s nothing frivolous about my case.

The gun industry does not need to be more protected than any other industry. If victims file law suits, the courts can sort it out like they do for other industries who are sometimes sued by victims who are harmed by a product. The tobacco industry was found to be liable for deleterious health effects caused by their products. The same with the auto industry. Why does Congress treat the gun industry differently? The corporate gun lobby may complain that they don’t have deep pockets but that is really not the case. The gun industry seems to be thriving thanks in part to the protections it has received from our own elected leaders who are afraid to stand up for the victims. And also thanks to the fear and paranoia sold to some in America that fuels the sale of firearms. And in a sick twist, many of these firearm sales increase after high profile mass shootings.

A federal judge ordered the parents of a Aurora, Colorado, theater shooting victim to pay court costs and attorney fees as a result of a lawsuit filed last year, and the defendants in the case say the family owes around a quarter of a million dollars. (…)

The lawsuit was part a larger effort by the Brady Campaign to Prevent Gun Violence to expose unscrupulous gun dealers that ignore obvious warning signs and sell to customers with malicious intentions.

The plaintiffs, Sandy and Lonnie Phillips, whose daughter, 24-year-old Jessica Ghawi, was killed in the shooting, filed suit in September, but a senior district judge dismissed the claims last month.

The judge cited the Protection of Lawful Commerce in Arms Act in the ruling, a law passed in 2005 to shield gun makers and retailers from liability for injuries caused by a third party with their products.

“We’re different than other cultures,” said Dudley Brown, executive director of Rocky Mountain Gun Owners, which advocates for firearms owners’ rights. “We do allow Americans to possess the accoutrements that our military generally has.”

Gun rights activists like Brown celebrate that freedom, but even some involved in the trade are troubled by how easily Holmes stocked up for his alleged rampage.

Chad Weinman runs TacticalGear.com, which caters to police officers looking to augment their equipment, members of the military who don’t want to wait on permission from the bureaucracy for new combat gear, and hobbyists like survivalists and paintballers. The site receives “thousands” of orders daily, sometimes from entire platoons that are about to deploy to war zones.

On July 2, Holmes placed a $306 order with the site for a combat vest, magazine holders and a knife, paying extra for expedited two-day shipping to his Aurora apartment. The order, Weinman said, didn’t stand out.

“There’s a whole range of consumers who have an appetite for these products, and 99.9 percent of them are law-abiding citizens,” Weinman said. But he said that “it makes me sick” that Holmes bought material from him. He added that he doesn’t sell guns or ammunition and that he was “shocked” at the amount of bullets that Holmes allegedly bought online.

Authorities say all of Holmes’ purchases were legal – and there is no official system to track whether people are stockpiling vast amounts of firepower.

This statement ( above) should concern us: “”There’s a whole range of consumers who have an appetite for these products, and 99.9 percent of them are law-abiding citizens,””. Law abiding or not, why is there an appetite for these products in the first place? Doesn’t that tell us something about our insane American gun culture? Who needs these kinds of products? And if you are law abiding and want them, a background check or further scrutiny should not be a bother to you. But…rights.

That’s right. Not only does U.S. federal law protect gun makers and sellers from being held responsible for selling arms to nutcases, terrorists and murderers, but the state of Colorado requires plaintiffs to pay them court costs for having the nerve to sue them! (…) The other problem, which Sachs does not specifically mention is that our nation’s lax gun laws — along with laws protecting gun makers and sellers — allow no recourse to victims of the weapons industries and the NRA gun lobby.

That is something that should outrage all Americans, black or white, gun owner or non-owner. Polls show voters overwhelming support a background check system that prevents serious criminals and the dangerously mentally ill from owning firearms. Yet the NICS isn’t getting the job done — failing about 228,000 times per year based on the latest FBI numbers. And that’s not even counting the sales from private sellers to private buyers (including those conducted in conjunction with gun shows) that, while restricted in Maryland, are unrestricted in 33 states by last count. According to the Brady Campaign to Prevent Gun Violence, background checks only cover about 60 percent of gun sales. (…)

As troubling as the Confederate flag may be as a symbol of racism and oppression, a gun in the hands of a criminal or a dangerous psychotic poses a far more imminent danger. Fixing the background check — and closing the private sale loophole on a national basis — is no assault on Second Amendment rights. Rather, it would be a case of making existing law, one that’s been on the books for 22 years, function in the way that Congress intended. And qualified gun owners would have nothing to fear as they’d face no additional burden beyond a meaningful criminal background check while gaining the comfort that terrible armed rampages like the one that took place in South Carolina might be made less frequent.

Sometimes overlooked in discussions of this nation’s falling violent crime rate (and it’s fallen every year since 1994 on a per capita basis) is the role of Brady background checks that have denied guns to 2.4 million prospective buyers who were either convicted of felonies, were fugitives from the law or were determined to be dangerously mentally ill. Surely fixing the system will yield even better results, making it just a bit more difficult to walk into a church and kill six women and three men gathered for a Bible study. As important as taking down the Confederate flag may be on a symbolic level as a repudiation of the kind of white supremacy that Mr. Roof embraced, fixing the leaky background check system would save lives of all kinds and likely in large numbers.

Background checks on all gun sales can save lives.

We need to Finish the Job and require background checks on all gun sales. It’s the bullets and ammunition that actually kill.

Back to the gun lobby and lawsuits. Some lawsuits have worked in spite of the 2005 law. This Kansas lawsuit puts gun sellers on notice that they need to make sure those who are buying their guns can pass a background check. From the article:

The owners of Baxter Gun and Pawn say they didn’t know Graham was a felon, and that they were convinced the grandmother was buying the gun as a gift for young Zeus. She filled out the form and passed the mandatory federal background check, as Graham waited.

“He paid cash for the gun, he carried out the gun, and he purchased the ammo,” Shirley says.

And just hours later, he used it to kill the boy, and himself.

“I lost my son,” Shirley says. “At the time, my only child. At the age of eight.”

She filed a negligence suit against the gun shop, and the Kanas Supreme Court eventually ruled that gun dealers must exercise the “highest standard of reasonable care” to keep weapons away from felons. That’s higher standard than had been in place.

He argues that gun control advocates face a veritable brick wall in Washington, where he says powerful gun rights lobbying groups consistently block gun control legislation. Civil litigation, he says, offers a chance to move the needle on restricting sales.

And more from the article: ” “Gun dealers can be held accountable when they irresponsibly supply a dangerous person. That is a powerful message,” he says.”

And what follows is a comment from a gun dealer about how this is not the norm and most gun dealers are responsible. It is only about 5% of gun dealers who are responsible for 90% of the crime guns. But that 5% comes with innocent victims losing their lives. There should be no tolerance for “bad apple” gun dealers. Clearly stopping these dealers from careless and dangerous business practices can save lives. It won’t bring the ones who were shot back and it won’t stop their families and friends from grieving for them, but if it will stop another family or more than one family from experiencing the devastation of gun violence, it is important and worth doing.

Lawsuits matter.

Reasonable people can agree that we need to keep people from being shot in any way we can. That being the case, our laws need to be stronger, not weaker. And our conversation about the role of guns and gun violence in our communities needs to involve a discussion about everything we can do to stop the senseless violence that is devastating our communities. Common sense tells us we must have that conversation.

The thing is, we shouldn’t have to beg for our leaders to pass laws that can save lives. We shouldn’t have to sue bad apple gun dealers to get them to do the right thing. We shouldn’t have to remind gun owners to keep their guns locked away, unloaded, from kids and teens so they can’t “accidentally” shoot someone or themselves. (According to the Gun Violence Archive, there have been 994 “accidental shootings since January of this year; 371 children killed/injured in the same time period; 1269 teens (12-17) killed or injured since January.) Something has to change.

We are better than this.

Other countries have managed to get it right. We can too if we have the will and if our leaders do what they know is right in the face of a well funded and fierce corporate gun lobby.

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2 thoughts on “Law suits and the gun lobby”

Guysays:

I see the PLCA as another buffer to frivolous lawsuits related to crimes 1+ sales down the line from the manufturer. The manufacturer shouldn’t be held accountable for the unvoiced motives of its lawful buyers (in the cases you’ve cited here).

“Law abiding or not, why is there an appetite for these products in the first place?” For the law/military members mentioned in that article and for civilians who require a lot from their equipment. Looking through the website mentioned, I own a number of the products listed. I bought/use them for lawful purposes and find the thought of submitting to a background check to purchase said items laughable (if not mildly offensive).

I don’t know which of the many lawsuits against gun manufacturers are valid and which are not – haven’t had the time to review them, in detail. Doubtless some are valid and some aren’t. (I did take a short look at the Sandy & Lonnie Phillips complaint provided here – it’s somewhat complicated and I have not come to a conclusion, as yet, regarding it’s validity specifically. I think it’s worth a look for anyone seriously interested in the PLCA topic.) I read the PLCA verbatim, a few years back, and didn’t see much on its surface that seemed all that ominous. However I’m not a lawyer and can’t speak to how it may inhibit otherwise legitimate lawsuits.

Manufacturers and sellers of potentially dangerous products should, out of pure decency at the least, hold themselves to a high standard. And the laws regulating the sale, transfer & use of such items should be as airtight as possible.

I make & sell muzzle loading weapons, so I’m far from anti-gun. I hunt with the guns I make and I’ve also got a few modern guns in my gun safe. That’s who I am & where I come from in the gun debate. But I can see the need for a better approach to reducing gun violence. Background checks, tightly written and tightly enforced, would make a positive difference. The background check laws we currently have a far from that, which is why they have very limited value.